Resurrecting Macc Report That Disrespects Court

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MP SPEAKS | Law and Institutional Reform Minister Azalina Othman Said acted injudiciously in writing her letter of reply dated March 20, 2023, to Najib Abdul Razak’s solicitors, Shafee &  Co. 
Free Malaysia Today reported on April 6, 2023, that the law minister in her letter confirmed that Justice Mohd Nazlan Ghazali violated the Judges’ Code of Ethics, had a conflict of interest when presiding over Najib’s SRC International case and that MACC had written to the Chief Justice to recommend disciplinary proceedings against Justice Nazlan.
The minister’s letter was written on March 20, 2023. This is after the Federal Court delivered its judgment on Feb 24, 2023, that the MACC’s investigation of Justice  Nazlan was unconstitutional, illegal and undermines the independence of the judiciary. 
This Federal Court judgment is reported in the Malayan Law Journal  Reports.
Azalina’s letter amounts to contempt of court. It totally disregards and is disrespectful of the Federal Court judgment. It is a contumelious challenge to the  Federal Court judgment by seeking to revive the MACC report after the Federal  Court already said that the MACC investigation was not genuine, not made in good faith and was carried out for a collateral purpose to assist Najib in his SRC case appeal.  
The Chief Justice delivered the Federal Court judgment, which was a unanimous decision by a panel of seven Federal Court judges. It is thus an insolent insult to the  Chief Justice representing the judiciary, in the circumstances, to write that she (Tengku Maimun Tuan Mat) has not complied with the MACC’s recommendation to commence disciplinary proceedings against Justice Nazlan, which will require her to disregard the findings of the Federal Court judgment.
Chief Justice Tengku Maimun Tuan MatThe Federal Court stated: “If an investigation or prosecution against a serving  judge is found to have been commenced for collateral purposes, the courts are  entitled, when reviewing them, to set them aside or pass any other remedy that  counts as suitably moulded relief.” [Paragraph 89 of the Federal Court  Judgement].
The Federal Court judgment found the MACC investigation was not bona fide on the  following grounds:
1. The MACC investigation is unconstitutional and bad because it did not comply  with established protocols designed to protect the independence of the judiciary from executive interference: 
a. The MACC did not seek the leave of the Chief Justice to investigate a  sitting superior court judge. 
b. The MACC did not obtain prior leave of the Chief Justice but acted on its own accord to publicise the facts of the investigation and contents of the investigation of a superior court judge.
c. The MACC did not comply with the protocol of maintaining the contents of the investigation of a superior court judge confidential. 
2. The Federal Court found that the MACC investigation was carried out for a  collateral purpose: 
a. The failure to consult the Chief Justice, even if the Chief Justice is the subject of a criminal complaint, is a very strong indication of a lack of bona fides in a criminal investigation. [Paragraph 79];
b. The manner in which the investigation was carried out is an indicator of the lack of good faith. The very notion of a judge being investigated is deleterious to the image of the judiciary as a whole. Thus, the posting or publicising of such an investigation is wholly unnecessary unless the judiciary, represented by the Chief Justice, has cleared the publication in the interest of the judiciary itself. [Paragraph 80]
c. A cursory reading of the facts and upon examining the documentary evidence on record, it is blatant that any investigations commenced against Justice Nazlan were done without regard to judicial independence as none of the protocols appeared to have been followed. [Paragraph 84];
d. The manner in which the investigations were publicised by way of a  press statement also does not appear to preserve or lend confidence to the independence of the judiciary. [Paragraph 85];
Former prime minister Najib Abdul Razake. The Federal Court took note that at the time the MACC press statement was issued, former prime minister Najib’s final appeal in the SRC International case was soon coming up for hearing before the Federal Court. The former prime minister even relied on an argument of supposed bias on the part of Justice  Nazlan and his former employment with Maybank as a ground to nullify his conviction. The Federal Court said: “The curious timing of the  investigation against Justice Nazlan which was done without consultation with the Judiciary also casts doubt on whether the  investigation against Justice Nazlan was bona fide.” [Paragraph  86]; 
The effect of Minister Azalina’s letter appears to be a form of executive interference with the independence of the judiciary. The independence of the judiciary suffered a  devastating blow in the 1988 judiciary crisis and its aftermath. It has been a slow and painful recovery to regain public confidence in the judiciary. 
The protocols for the investigation and prosecution of sitting superior judges have to be complied with for upholding the independence of the judiciary. Ministers and politicians should take heed of the words of Raja Azlan Shah, late Sultan of Perak and former Lord President of the Federal Court: 
“Judicial independence is a cornerstone in any democratic country, as every lawyer and politician knows. The judges are independent of all – the executive, Parliament and from within themselves – and are free to act in an independent and unbiased manner. No member of the government, no Member of Parliament and no official of any government department has any right whatsoever to direct or influence the decision of any judges.
“The judges are not beholden to any government. They owe no loyalty to ministers. They have longer professional lives than most ministers. They, like civil servants, see the government come and go. They are “lions under the throne” but that seat is occupied in their eyes not by kings, presidents or prime ministers but by the law and their conception of public interest. It is to that law and to that conception that they owe their allegiance. In that lies their  strength.” - Mkini
WILLIAM LEONG JEE KEEN is the Member of Parliament for Selayang.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.

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